October Term 2016: Highlights & Perspectives
In this First Monday event, Law School faculty discuss their insight and opinions on upcoming United States Supreme Court cases and the issues currently facing the Court.
Featuring:
Anthony J. Casey, '02, Professor of Law and Mark Claster Mamolen Teaching Scholar
Nicholas Stephanopoulos, Assistant Professor of Law
David Strauss, the Gerald Ratner Distinguished Service Professor of Law.
Moderated by Sarah M. Konsky, Assistant Clinical Professor of Law and Director of the Jenner & Block Supreme Court and Appellate Clinic.
Introduced by Dean Thomas J. Miles.
Transcript
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Miles:
Good afternoon, everybody. Welcome. Welcome to the University of Chicago's First Monday event. So as many of you know, uh, the First Monday luncheon is a great tradition for the University of Chicago Law School. Each fall with the approach of the new Supreme Court term, we bring members of our faculty here to Washington to talk about the cases and the issues facing the Court. Uh, and we have a terrific panel today. Uh, for those of you who don't know me, my name is Tom Miles. Last November I became Dean of the Law School. Uh, I have to confess that this is my first Monday event, even though I'd been on the faculty for 11 years. I don't teach in the area of constitutional law. Uh, and so I had to become Dean in order to get invited to this event. Uh, so bef-- and now that I'm Dean, I of course can't resist a few administrative announcements at the beginning. Uh, so I only have two. So the first one is that I want to highlight an upcoming event. Last year's first Monday speaker professor Laura Weinreb, who you may remember if you were here, is uh, giving a talk at the National Archives later this month. Professor Weinreb has a new book, The Taming of Free Speech, which examines the historical origins of current First Amendment doctrine, looking at, uh, the labor rights movement and in particular the right to strike. That event is going to be on September 21st at the National Archives. There's, uh, information at the check-in if you are interested. And the second, uh, announcement I have is not really administrative but in part, and that is, I'm very pleased to announce, uh, that last month the University of Chicago announced a Supreme Court and appellate clinic. Uh, the clinic is a partnership with the law firm of Jenner & Block. We are very excited about it for a number of reasons. It provides our students the opportunity to work with experienced litigators on U. S. Supreme Court and federal appellate litigation. We're especially excited because our colleague professor David Strauss will serve as the faculty director. David, as you know, is a greatly influential scholar of constitutional law, an incredibly experienced practitioner in appellate advocacy, and of course is an incredibly beloved teacher at the Law School and we're thrilled that he is leading this effort. Uh, I also want to note our great partnership with the law firm of Jenner & Block in this. Not only have they provided generous support, they're also providing tremendous mentoring and teaching support in the clinic. And I suppose the, the final reason why we're so excited about this clinic is that it has brought to us our new colleague, clinical professor Sarah Konsky. Uh, Professor Konsky comes to us from the law firm of Sidley-Austin where she practiced both in appellate courts and in trial courts. She has a particular expertise in labor and employment law and in the short months that she has been with us, she has already developed an incredible following among our students. Uh, she is going to be a fantastic presence of the Law School, a great teacher for us. We're very thrilled she's here. I think her success is due in no small measure to the fact that she's also a graduate of the Law School. Uh, but rather than my tell you how wonderful she is, I'm going to turn it over to her to be our moderator for today's discussion. So welcome.
Audience:
[applause]
Konsky:
Thank you, Dean Miles, for the very kind introduction. It's fantastic to be back at the Law School and to be part of the launch of our new Jenner & Block Supreme Court and appellate clinic. We're very excited about this clinic and wanted to take a few minutes today to tell you a little bit more about what we're up to. As Dean Miles said, our clinic's focus is on representing clients and cases before the United States Supreme Court. We anticipate that as our client, as our clinic grows, we may also, um, take on cases in the federal appellate courts and the state supreme courts as well. Our students get the opportunity to work closely with experienced litigators on all aspects of Supreme Court and appellate cases. From identifying and selecting the cases to formulating case strategy, to analyzing potential arguments, to researching and drafting the briefs, to preparing for oral arguments. So they're really getting firsthand experience being appellate advocates. We're fortunate as Dean Miles said, to have a remarkable team of Supreme Court experts leading our students in this clinic. And perhaps even more importantly also working closely with the students, um, on these cases. Um, from the Law School clinic, we have professor David Strauss. Um, and because he's on one of our panels or because he is on one of our panels today, I'll save his introduction for in just a few minutes. And we've also, um, been honored and privileged to get to work with the Jenner & Block law firm on this clinic. And, um, we're happy to have Jenner appellate partners, Michael Scodro and Matthew Hellman also, uh, serving as leaders of our clinic. Then I act as the clinic's director, so I also get the great privilege of supervising and working closely with our students, um, on our cases as well.
Konsky:
Our panelists today will be covering a number of different Supreme Court cases, but I wanted to be sure while I have the microphone to tell you about the two cases that are before the Supreme Court that our students have been working on. The first one is Manuel vs City of Joliet. Our clinic together with Jenner represents the respondent in the case, the city of Joliet. The students have been extremely excited to have a merits representation right off the bat, um, in the court. The issue in this case is whether a claim for malicious prosecution lies under the Fourth Amendment or whether it lies elsewhere. It's a technical and complicated legal issue that our students had the opportunity this last quarter to really dive into, um, as they worked on researching and drafting the brief. Um, our team filed the response brief in the case last month and the case is slated for oral argument next month. The second case we've been working on is Peña-Rodriguez vs Colorado. The clinic filed an amicus brief in that case on behalf of the National Association of Federal Defenders. The issue is whether a rule prohibiting jurors from impeaching their verdicts would be in violation of the Sixth Amendment right to an impartial jury when the rule has the effect of barring evidence that the jury deliberations were tainted by racial bias. Again, it's a really interesting, um, issue that our students seemed to really enjoy working on last quarter. In both of these cases, our clinic students research and draft portions of the brief. They were also active participants in our weekly team meetings where we all gather around a conference table to discuss our cases. We talked through the week's work. Um, everybody summarizes what they'd been working on. We bat around potential arguments, we debate the strategy for where to go next. Um, these meetings are the highlight of the clinic for me for sure. And I find myself consistently impressed with our students' insights, their intelligence, and their enthusiasm. So we're thrilled to be adding this new layer to the Law School's strong clinical offerings and to be providing our students with the opportunity to get high level and real world experience in appellate law. We're also very hopeful that our clinics will help our students to develop skills that will be invaluable in their careers, wherever those careers take them. Um, and we're focused on things like analyzing complex legal arguments, helping our students learn to write and argue persuasively, and, and working effectively both with clients and on teams. So we're really looking forward to the year ahead and we hope to have more great things to report to you about our clinic's work, uh, next year at this event.
Konsky:
And now I'd like to shift gears to briefly introduce our three esteemed faculty members who will be our panelists today. Um, Anthony Casey is Professor of Law and the Mark Claster Mamolen teaching scholar. Tony is an expert on bankruptcy and the laws of business and finance and his research examines the intersection of finance and law. Tony received his JD with high honors from the Law School in 2002. Next we have Nicholas Stephanopoulos, who is an Assistant Professor of Law. Nicholas's research and teaching interests include election law, constitutional law legislation, administrative law, comparative law and local government law. And finally, David Strauss is the Gerald Ratner Distinguished Service Professor of Law, and as previously mentioned a couple of times now he's also our faculty director, um, on our Supreme Court and appellate clinic. David has argued 18 cases before the United States Supreme Court and published articles on a variety of subjects, principally in constitutional law and related areas. So as I'm sure you know, today's presentation is entitled "October Term 2016: Highlights and Perspectives." Each speaker will speak for about 10 minutes and then we will open the floor for questions from the audience. And now without further ado, I will turn things over to Tony Casey, then kick off our discussion.
Casey:
Okay. Thank you. Thank you all for coming. Uh, like Dean Miles, I don't teach constitutional law, so I'm going to be talking to you about, uh, the business law cases at the Supreme Court. Uh, and while there are a handful of cases that fall under that label, I want to focus on two that are particularly interesting and I think particularly important. The first of those is, uh, United States v Salman, which is a insider trading case. The second is the Jevic bankruptcy, it's a corporate bankruptcy case. As is often true, both of these cases pose the Court the choice to go broad or go narrow so they could decide on narrow grounds that have very little ripple effects outside of the case or they could give us broad principles that change the way we think about insider trading and bankruptcy. I'm going to suggest that they're going to go narrow on Jevic in the bankruptcy world, leaving lots of unanswered questions but probably go broad on Salman, giving us a broad principle for insider trading. So I want to start with the insider trading case. The, the issue of the question is about what's known as remote tippee trading. And so the I, the simplified hypothetical is insider it gives information to friend, gives information to friend, who trades that information; is that insider trading, right? So the person trading isn't an insider, but they had the information. The framework for these type of cases goes back to 1983 in the United States v Dirks case and the Supreme Court there said that the mere possession of insider information is not enough to make insider trading. And there's really two reasons behind that conclusion, right? So one was a policy reason. We have a whole industry of market analysts whose legal business is to go out find information other people don't have. And if we say the mere possession of information means trading on it makes it is criminal, that would disrupt that whole industry. The second is a statutory reason, right? So there's actually no statute that's explicitly says you're not allowed to inside trade. There is a statute that uses words like manipulation and deceptive practices in relation to securities. And so the court said, if you're going to take insider trading and make it illegal under that statute, you need to point us to something that's bad behavior, some manipulation, some deceptive practices. And so in Dirks, the Court said the best way to find that is to show that the insider who had the information breached a duty when they gave the information to the outsider. And the best way to find that breach is to say they got some personal benefit from doing so. So if an insider gets paid to give information to a friend, then clearly that was a breach of a duty and then that person trades on it knowing that the insider breached the duty, that would be a crime.
Casey:
Now the problem with that statement was, well, what else could be a personal benefit, right? The Court didn't really give us constrict guidance on that. So now fast forward to 2014 it was a case in the second circuit, United States v Newman. So United States v Newman on the facts very cleanly set up the question of what could be a personal benefit. So in that case you had an inside in, an insider who was an investment relations professional who gave information to a friend who gave it to a friend who then shared it with their boss who then traded on it. So the question was, was the boss guilty of insider trading? Now the government argued in that case. Well yeah, because the trade, the inside person gave it to a friend and that's a personal benefit if you help out a friend. Now, they weren't really close friends, they were professional friends. There was some career advice going back and forth, but the government said that's enough. So the second circuit said, no way. They said mere friendship cannot be enough to establish the personal benefit that Dirks was talking about. You need something more than that. If you state the case like that, it looked like a great case for the Supreme Court to take and give us some guidance. The problem was in Newman, there were some other procedural irregularities and problems with jury instructions with, which meant that even if they reversed the second circuit, the convictions probably still would be overturned. So it would have been an advisory opinion. So they don't grant cert on Newman. Now we get to Salman. So Salman doesn't have those procedural irregularities. So the court sees a case, it's been looking for an insider trading case. I think we can say that it says now it can make its decision. It's procedurally clean. The problem is the facts and Salman are not, are not clean. They're messy, but they're messy in a way that makes it an easy case but not an interesting one. So Salman is the following. Insider gives information to his beloved brother and there's lots of evidence about the brother, brother being beloved, including testimony about tears during a toast at a wedding, the dead father evidence. The witness says I gave it to him to help him out. I really hoped this would set him off, you know, doing well in life. The brother then gives the information to his future brother-in-law, I think we call it brother-in-law because it's the sister of that brother-in-law marrying the insider. So it's brother gives information to brother, gives information to guy whose sister's marrying first brother who then trades on it. Then there's testimony that says, yeah, we all the brothers are testifying, we all planned on all these trades happening and we were worried that people would find out.
Casey:
And so if you take a step back and say from a policy perspective, if we're in a world, where we'd want insider trading to be illegal, illegal, we also want this to be illegal, whatever you want to call it, right? So if you're not allowed to trade on inside information, we probably don't want you to be able to, help your brother get rich on inside information either. But the Court wanted an insider trading case, so they take it. Now at the ninth circuit, so Salman's a ninth circuit case, The petitioner said, Hey, look at Newman. Newman means I win because this is just mere friendship. Now people have said there's a circuit split between the ninth circuit and the second circuit. Interestingly, the ninth circuit opinion is written by a Southern district New York judge sitting by designation, uh, who would have been bound by Newman in the Southern district New York. So he writes an opinion, which I actually don't think creates a circuit split because the sentence reads something like this. If you read Newman to say what petitioner says, it's wrong, but that's different than saying Newman's wrong. It's saying if you want to read it that broadly, that this friendship's not enough, then it would be wrong, but you could read it much more narrowly and say Newman said mere friendship is not enough, but helping your beloved brother who cried at your wedding when you gave the toast, that's different than mere friendship. Right? That's the benefit that Dirks was saying. Well there are personal benefits out there that would be problematic and it doesn't implicate any of the worry about destroying the analyst market to say you can't help your close brother out in a case like that. Whereas Newman, well that's harder, right? We don't want to shut down the analyst market, that's what Dirks said. So as I said, the Court has the choice: go broad or go narrow. They could say, we're not going to say whether Newman was right or wrong, but this clearly is a personal benefit. I don't think they'll do that. I don't think they took this case to decide the brother question. They took this case to review Newman, which is a very controversial case and a very tough case and so they'll probably come out with drawing a line. The line will be way over from the beloved brother, probably somewhere around Newman. I don't know whether it's mere friendship is enough or some sort of test to say mere friendship becomes or a friendship becomes enough when the government can show the following. You'll probably get a few dissents on the grounds that, Hey, this is a really vague statute and this is the petitioner's main argument vague statute.
Casey:
The government shouldn't be able to make these standards up, but I don't think you're going to get the majority of the court to say, Oh, all of insider tradings out or what the petitioner wants is you have to have money to make it a personal benefit. You'll get some sort of line around friendship, I think is what we're going to get. All right. Now Jevic. Jevic gives us the opposite. So Jevic actually has a really clear statute that tells you what to do, but really, really messy policy that makes the case hard. So Jevic is a bankruptcy case. The tr, it's a trucking company that files for bankruptcy. Basically has no assets, other than a lawsuit it can bring against the private equity fund that's structured it's LBO a few years earlier. So that lawsuit is probably worth millions of dollars. It also has creditors, which include truck drivers who have a claim against both Jevic and the private equity firm because they were terminated in violation of a statute. They're potentially entitled to $12 million. Importantly, under the bankruptcy statute, their recovery has to come before any other creditors', any other unsecured creditors'. Now, Jevic has no money, so it's hard to sue someone when you have no money. So they sit-- and it's hard to defend lawsuits that the creditors bring when you have no money. So they get into a settlement agreement, settlement negotiation with the private equity fund and the equity fund says the following: we would be happy to give you $2 million to settle your Jevic's claim against us. But those truck drivers are also suing us and we don't want to give them $2 million to fund the lawsuit against us. So we'll give you 2 million, you the estate, as long as those creditors don't get a cent of it. Now that's a problem because under Chapter 11, if you reorganize the firm, you have to pay priority creditors first. Under Chapter Seven, if you liquidate a firm, you have to pay priority creditors first. So they say, well, why don't we do neither of those and do a structured settlement. Now those words don't appear in the bankruptcy code anywhere. Uh, but-- or structured dismissal, sorry, settlement and structured dismissal don't appear anywhere, but it works like this. We'll settle the case, we'll put money, we'll make sure all the money goes to only non truck driver creditors, and then there's nothing left in the estate, so we can dismiss it and no one has to worry about anything else. Now, the problem with that is the code provision that says you can dismiss the case says every, if you dismissed without a reorganization or liquidation, everything goes back to status quo ante. The settlement never happened. Despite that clear set of provisions in the bankruptcy code, the bankruptcy court approved, the district court approved and the appeals court approved the structured dismissal that paid everyone but the truck drivers. Why did they do it? So they had what seems like I think a pretty compelling policy argument that goes something like this. $2 million is more than zero. So the court said, listen, truck drivers, you get nothing or nothing, and the other creditors get nothing or $2 million. Truck drivers, you're no worse off if we give them $2 million. It doesn't seem right to, you've just shut this all down and not let and not let anyone get money just because the truck drivers aren't getting anything. Again, it's really hard to find statutory authority for that. So as I said, I think the Supreme Court will view case in that way pretty narrowly and say where's the statute? And they do this in bankruptcy. There's kind of the history of bankruptcy cases. We're not pragmatic. We're very strict to the tax of the statute.
Casey:
We're not going to give that kind of discretion where's the statutory provision? It doesn't exist. Reverse. If you take a step back, however, this is the, if they could go broad everything a debtor does changes the way money gets distributed in a bankruptcy. So if as in Chrysler you sell a firm to someone who promises to pay unions, that changes the distribution. If as in Kmart, the bankruptcy debtor wants to ha-- to save certain vendors because they're critical to the business, those vendors get paid and the other ones don't. If you assume one contract, those creditors get paid. And so the bankruptcy code does have a provision that says the debtor can spend money to benefit the estate and now we have the problem of when is a distribution, when is a payment an expenditure to benefit the state and when is it a distribution that violates priority. And what I think will happen in Jevic is we're going to draw the first line and then the courts below are going to realize there's a lot of other lines we need to draw and now we don't know what to do because we don't have guidance. So the hopeful me says the court will give some guidance of what's an expenditure and what's a distribution. The more realistic me says no, they'll just say this was a distribution. That's not okay. We'll get to the other cases if they ever come back. Thank you. I'll hand it over to Nick.
Stephanopoulos:
Great. Thank you Tony. And thanks to all of you for coming to this really terrific event. Um, so I'll be talking today about the Supreme Court's two pending racial gerrymandering cases this term. Uh, these are a Bethune-Hill v Virginia State Board of Elections and McCrory V Harris. Um, I'll start by just giving a little bit of background on the law of race and redistricting. Uh, then I'll summarize the facts of these cases and the lower court decisions. And then I'll say a few words about why the issues presented by the cases are interesting and important going forward. Um, so to understand this pair of cases, you have to understand two separate bodies of law. And one earlier Supreme Court decision in particular. Uh, the first body of law is racial gerrymandering doctrine, um, which says that strict scrutiny applies whenever a district is drawn with race as the predominant factor for the district's creation. Um, in the 1990s, that doctrine was deployed by, uh, white plaintiffs to strike down bizarrely-shaped districts that had been designed by Democrats. Uh, the doctrine is now in sort of an ironic twist being used by minority plaintiffs to attack less oddly shaped districts that in all cases were designed by Republicans. It was almost a complete inversion of the original circumstances for this cause of action. Uh, the second body of law here is the Voting Rights Act, which has two provisions that are relevant. Uh, section two and section five. Um, simplifying a little bit. Section two says that districts in which minority voters are able to elect their preferred candidates have to be drawn wherever there exists large concentrations of minority voters and voting is racially polarized. Uh, then section five says, are, uh, rather used to say before it was neutered by the Supreme Court that um, certain Southern jurisdictions can't reduce the number of districts in which minority voters are able to elect their preferred candidates. And the important prior case is Alabama Legislative Black Caucus v Alabama, which the court decided just last spring. Uh, when Alabama redrew its state legislative districts in 2011, it froze the minority percentages of all of its then existing majority minority districts. Uh, the plaintiffs in the case argued that this was a textbook case of race being the predominant factor in redistricting. Alabama responded that it froze the minority percentages in order to comply with section five of the voting rights act. The court didn't buy that excuse. Uh, the court held that section five does not require mechanical racial quotas. Instead, it requires a fact intensive assessment of each district to figure out whether voters in that district are actually able to elect their preferred candidate or not. So both of the current cases, uh, Bethune-Hill and McCrory involve twists on the Alabama fact pattern.
Stephanopoulos:
Uh, in Bethune-Hill, Virginia had 12 existing state house districts that were electing black voters' preferred candidates, and these districts had, uh, black voter percentages between 45% and 60%. The state redrew all of these districts using a 55% floor so that all of their black percentages were above 55%. Uh, the trial court held that this was not racial gerrymandering because even though an explicit racial target was many aspects of the districts, shapes were driven by traditional redistricting criteria, not by racial considerations. And so race therefore did not predominate over all of the other factors in determining the shapes of the districts. In McCrory next, North Carolina had two existing congressional districts that were electing black voters' preferred candidates. Uh, one of these was 42% black and the other one was 48% black. The state redrew both of these districts to be majority black. Uh, and it said that it did so in order to comply with section two of the Voting Rights Act. Uh, this trial court held that because a racial target of 50% was used, race was the predominant factor in the district's creation. And the court also held that the state's justification for the racial target, uh, its effort to comply with the Voting Rights Act was not persuasive. Um, according to the court, there wasn't enough racial polarization in the areas covered by the districts and therefore the districts were not required by the Voting Rights Act. So considered together, Bethune Hill and McCrory raise the, uh, quite interesting issue of what it means for race to be the predominant factor in redistricting. Uh, McCrory implies that the question is ultimately subjective. So if race was the most important consideration in the minds of the legislators, then strict scrutiny applies. Uh, Bethune Hill on the other hand implies that the question is ultimately objective. No matter what legislators in fact think if districts shapes correspond better to traditional criteria than to racial demographics, then race was not the predominant factor. Uh, to see the difference between the two approaches, imagine that a legislature declares we want to create a 55% black district and then it draws a 55% black district that also happens to be a perfect circle and to correspond perfectly to a single county. Under McCrory strict scrutiny would apply because the legislature's subjective motivation was racial. But under Bethune Hill strict scrutiny would not apply because objectively the district can be explained perfectly well by traditional criteria. So how is the Court likely to resolve this dispute? Um, I think it's pretty clear that the subjective approach in McCrory is more consistent with the Court's precedence. Uh, and I expect the Court will, uh, say so when it decides these cases. Uh, notably in, in 1995 decision that laid out the test for racial gerrymandering, the Court said that the question is whether race was the predominant factor motivating the legislature's decision. And the Court also said in that case that deviations from traditional criteria are, uh, merely circumstantial evidence of a racial purpose. Uh, they're not the violation themselves. Uh, and so I think Bethune Hill's objective approach, uh, conflicts with this language and therefore is going to be set aside.
Stephanopoulos:
Uh, the second interesting issue from these cases comes from, uh, McCrory and it's whether states can take districts that are below 50% in their minority population and that are already electing minorities, uh, preferred candidates. And then whether the States can raise these districts' minority populations above 50% and defend their actions on the basis of the voting rights act. The trial court in McCrory was able to skirt this issue by carrying out a very odd analysis of racial polarization, which I won't get into, uh, now. Um, but the Supreme Court likely will have to confront this issue and it's quite illegally intricate issue. So on the one hand, in a 2009 case, the Court said that plaintiffs in a section two suit have to show that an additional majority minority district can be drawn. On the other hand, in that same case, the Court said that when plaintiffs successfully make this showing, the state has discretion in coming up with a remedy. Uh, it can draw either a new majority minority district or a new crossover district with a minority population below 50% that nevertheless elects the minority preferred candidate, thanks to crossover voting from, uh, from white voters. So if the Court reaches this issue, which it very well might, uh, I predict that it will confirm that section two does not require states to draw majority minority districts. Uh, conservative justices on the court have never liked these districts because they see them as overly racialized. Uh, and increasingly the liberal justices on the court also don't like them because they're more packed than they have to be to elect minority voters' preferred candidates. So if that's right, that means that North Carolina's defense of the districts will fail and they'll be struck down as racial gerrymanderers. Um, lastly, let me just say a couple of words about the dog that isn't barking in Bethune Hill and McCrory, uh, which is partisanship. So it's perfectly clear that the real motivation behind both of these lawsuits is not some kind of principled objection to the use of race, uh, in governmental decision-making. Uh, it's obviously Democrats who are aggrieved by very aggressive Republican gerrymanders in North Carolina and Virginia, uh, and resorting to whatever legal tools are available to fight the gerrymanders. Um, I wrote an article last year where I found that, uh, North Carolina's congressional plan is the fifth worst partisan gerrymander in the country. And Virginia's state house plan is the fourth most extreme, uh, in that category of, uh, of district maps. So it's completely understandable that Democrats in these two states want to, uh, undo these quite egregious plans. Um, it's just ironic and a bit of a shame that because of the Supreme Court's inability to come up with a test for partisan gerrymandering, uh, Democrats instead have to attack these plans using a racial cause of action. Uh, these are just the latest in a long number of racial gerrymandering cases where all of the rhetoric is about race. But the true underlying motivation is, uh, uh, unquestionably partisanship. Um, and I think it would be nicer in the future to focus on the issue that is now subterranean instead of letting it continue lingering, um, below the surface. Uh, so with that I'll stop and I'll turn it over to David to hear about some more of the courts, uh, pending cases. Thank you.
Audience:
[applause]
Strauss:
Thanks Nick. And thanks to Tom and Sarah for the introductions. Thanks to all of you for coming. It's great to see so many old friends and former students and you guys, you all look exactly the same as you did when you were students and I expect you to say the same. Okay. We squared away on this? Um, I, I initially thought this case, this term in the Court was going to be very dull. I guess that's the conventional wisdom. And it still could be depending on what cases they end up taking and what they end up doing with them. There are a couple of cases that are, several cases I think, that are potentially quite interesting. So I thought I would talk about two cases that have been granted already. Uh, one that is on the conference list for the so called long conference just before the first, uh, grants of the, of the term that I think is the issue at least as likely to get to the court. And then another that's attracted a lot of attention. The petition's just been filed, it's down the road but I would be surprised if it's not, uh, granted. So the first time I want to talk about a case that's been granted is called Trinity Lutheran against Pauley. Um, uh, the case, I mean a starting point for this case, you know, if you get new tires on your car, they charge you some enormous fee and it's a tire recycling fee and you wonder what that's about. That is actually the starting point for this very controversial Supreme Court case. The state of Missouri, what it does with that fee is to set up a program where if you run a playground, you can apply for a grant. And if you get the grant, you take the grant, the grant is to enable you to go to a tire recycler who will turn those old tires into a compound that, um, will provide the, the surface for the playground so as to replace the pebbles or, or I guess people don't use sand anymore because dogs kind of, cats kind of like the sands, but they don't use sand anymore. But, uh, the pebbles or whatever stuff there is at the bottom of the playground, the kids always fall into so that I can fall and scrape their knees on tire compound. But actually, I mean, my playground days, alas, or, uh, my kids' playground days are behind us, but, uh, that stuff really is a lot better. So it's worth getting the grant if you can. So the Trinity Lutheran Church runs a learning center for little kids. It describes the learning center as part of its ministry. It makes no, no equivocation about this. It's part of the church. The learning center has a playground. They applied for the grant. It's a competitive process. They did very well.
Strauss:
They would have gotten a grant except that Missouri has in its state constitution a couple of provisions that forbid the state from aiding churches. So Missouri denied the grant to, um, Trinity Lutheran for its playground. And that's, that's basically the case. The case, uh, the question is whether that was an unconstitutional act by Missouri because it violated the free exercise of religion clause of the First Amendment. Then the case involves this famous notorious and basically intractable tension between the free exercise and establishment clause of the Constitution. The tension, to put it, to put it, uh, reduce it to its essentials is that the free exercise clause says that the state can hurt religion. The establishment clause says the state can help religion sometimes. Um, uh, failing to help constitutes hurting. Exactly when does failing to help constitute hurting? Well, that's a hard line to draw. Um, so in this case, by refusing to give the grant did, which did Missouri violate the free exercise clause by impairing the exercise of religion. That's basically the, in some deep sense, the issue. There is an important, uh, qualification to that that I'll get to in a second. But in a deep sense, that's the issue. There is one very significant precedent in the picture. It's a case called Locke against Davey. In that case, a state had a program to provide scholarships for certain students. The student won the scholarship, would have won the scholarship except that he wanted to use it to study to be a minister and the state said, no, we're not going to fund your study of devotional ministry. Uh, the Supreme Court said, that's okay. The state has a right not to do that. So we're not saying they can't do it, but if they choose not to do it, that's okay. That doesn't interfere with free exercise. In this case, Missouri and it's amici are relying on that precedent saying this is the same case. We get to decide, do we want to provide these funds for this religious enterprise, excuse me, religious enterprise or not. Um, now in those terms, if you, if you think about, and that term is where, how is this, how should we think about it? How is it likely to come out? The problem, as I said, is intractable. There are polar cases that are very easy. It doesn't seem as if a state could say, well, you're a church. You don't get any fire protection or you don't get any police protection. You're on your own if you have a break in. You hire a private security force. That doesn't seem okay. Um, on the other hand, if a church said, you know, we, we found that by, um, uh, by converting people to our religion, we can actually save them from a life of crime. And we would like a grant from you to, um, uh, to support our activities and proselytizing because it'll save people from a life of crime. You can see where a state would say, no, we're not, we're not going to do that. In fact, the state could not do that. So the polar cases are easy, but as often the case, the lines are hard to draw. In this case, where could it be drawn? Um, the, uh, the church says, look that Locke against Davey, that case that the kid who wanted us, that any minister that's a devotional activity. Running a playground is not a devotional activity. Draw the line there. Um, the, uh, the state will probably, if the pri--, the state's most plausible level, the most appealing line would be something like we don't want to get in the business of aiding buildings because once you start down that road, this is a physical structure, now you have a church that wants some help because it's a landmark building. Will you give us aid?
Strauss:
Now every church then wants some help because it needs renovation. You have a program to renovate buildings, maybe make them environmentally friendly and pretty soon you have this state really in the business of reconstructing churches, and that really does look like an establishment of religion. So I could see an opinion coming out one way or the other on that line. This is Oak. It's Missouri can't do this because it's, uh, it's only allowed to deny, um, aid to devotional activities. Missouri can do this because the last thing I at the buildings, I could see that going either way on that axis. Um, but there's an underlying problem here. I said there's a hard line to draw and there is a hard line to draw. The underlying question is who gets to draw that line? Um, and one way to interpret what the church is saying in this case, and they backed off it a little bit, but there are some that are mickey have not. One way to interpret what the church is saying is the courts draw that line. So the, the government has no flexibility. Um, there's some things the government must do. There's some things the government cannot do. If it's not something that you're forbidden to do because it's an establishment, it's forbidden aid, then you must do it. Um, and because you're not forbidden to support playgrounds, therefore you must, uh, that's one possible position to take. In this case, the other position would be, no, there's some room in the joints for politics, for a political or a democratic decision to say, well, we could, we could provide this aid, but we choose not to. We, we think government should stay as far away from religion as possible. And we in Missouri want to stay away from it. So while we could provide the aid to the playground, we would rather not. And for the court to say, well, yes, there is, as they said in an earlier case, play in the joints and they could, they could. It's a, it's in an area where we're going to leave this decision up to the democratic process. The reason I focus on that is I think in an, in an interesting way that was, that's a, that's a, um, an issue for the Court now. Uh, and it was an issue that came up in Zubik. This case about the contraceptive mandate with a question was the, um, um, uh, funds from the affordable care act going to pay for contraceptives. And if you recall what the Court actually did and it didn't, it wasn't, uh, I have to say it wasn't it's finest hour. Uh, what the Court actually did was to try to play mediator and put out a settlement proposal to the parties and say, here's a possible solution.
Strauss:
Instead of deciding the case, here's a possible solution. What do you, what do you guys think about this? Which is not sort of the role you kind of expect the Supreme Court to play. Um, but what it does indicate is a tendency to say these are issues for the courts. There had been extensive negotiations in the White House about the Affordable Care Act contraceptive mandate. They came up with a compromise and then the compromise was challenged in court. And the Court could have said, listen, this was hashed down the political process. And that's, you know, religious groups have a fair share political power, at least a lot of them, not all of them. And that's a separate question. Um, leave this, the politics and the Court's instinct was to do the opposite. Now, whether a new Court, a four-to-four Court or a Court with a new member will have that same instinct or whether that Court will say, you know, it's time for the time to sort of leave some room for the democratic process to operate here and to allow these issues to be resolved democratically instead of for us to go in and say, here's the line instead to say the line falls somewhere in this range and where it falls in that range is up to politics. I think that's a big question that has implications beyond this, uh, itself pretty important case. Okay. That's the first case I wanted to mention that's before the Court. Second case, which I'll deal with more briefly, it's been granted and scheduled for argument. Trinity Lutheran, by the way, although they put out the October and November argument calendars, Trinity Lutheran is not on either, even though it will have been fully briefed. Um, and there's speculation that the reason it's not is that the Court suspects it might be a four-four split and they're trying to push, push things off as long as possible in the hope of getting a ninth, who knows? But that's, that's a possible. Okay. Second case, um, also quite interesting and an important, it's a, there are two combined cases, Bank of America against City of Miami and Wells Fargo against City of Miami.
Strauss:
These are are, uh, these are began with suits brought by Miami against these banks, claiming that the banks engaged in predatory, discriminatory, predatory practices with respect to home mortgages. The suits are brought under the Fair Housing Act, the federal statute forbidding racial discrimination in housing. And the city said these banks and the way they pitched mortgages to minority customers engaged in racial discrimination. And why is this the city's problem? Well, the city says, we'll tell you why it's our problem. Because you sold these minority customers on, um, a sub mor-- subprime loans, uh, balloon payments, um, teaser mortgages, a lot of them went into foreclosure. When loans go into foreclosure, our expenses as a city are ratcheted up. We have to take care of the property. Property values decline. We get less tax revenues, foreclosures become our problem and the foreclosures happened because of your discriminatory practices. That's Miami's allegation against these banks. The issue isn't about the merits of the case, whether these were in fact discriminatory practices. It's not really even about whether there's a causal chain that's in the picture, but only obliquely. The issue is one of standing basically, you know, Fair Housing Act is supposed to be an act to prevent people from being discriminated against and being offered mortgages or leases or sales. Um, the city really isn't one of the intended beneficiaries of that act. The act is not intended to protect against this kind of injury, uh, to the city, uh, decreased tax revenues, increased expenditures because of foreclosure. That's the question. Is the act properly construed to protect that interest as opposed to the interest of the African American, um, uh, seeking to buy a home who's discriminated against, which is obviously is intended to protect, but does it extend this far? The legal background is there some language in earlier cases dealing with the statute, which is where the court was extremely expansive in describing the interest that the statute protected. Um, and that language if taken literally would, pretty clearly seems to say Miami is a potential beneficiary of the statute, but that language and that attitude towards standing may belong to a bygone era. The court hasn't repudiated it expressly, but it's definitely taken a different approach in interpreting other statutes. Uh, and that'll be the issue is whether they'll stick to their old approach under which Miami probably allows is allowed to go forward or they'll say, no, no, that's where we're no longer in an era where we're going to throw open the courtroom doors that wide, in which case Miami probably will not be allowed to proceed. But this is potentially quite an important issue for reasons that I think are practically speaking for reasons that are, that are pretty clear in the wake of the, um, of the housing crisis of, uh, uh, 2008 2009.
Strauss:
Okay. Now a third case. This is a case that, um, is, will be on the, on the conference, on the long conference list and might be granted at the very beginning of the term. It's called Lee against Tam. But the underlying issue is one of, uh, enormous importance here because it affects the fortunes in a very direct way of um, what I'll refer to as the Washington indigenous person's football team. Um, uh, the case is called Lee against Tam. Tam is an, uh, Asian-American who has a rock band and he called his rock band The Slants, which is a slur, um, on Asian-Americans. Now, he says he was doing it in order to make a point that we are going to reappropriate this slur and turn it into something favorable to our group, which is something that groups do with, with, um, with slurs. He said he wanted to do that. Um, he applied for a, uh, a sought to have Slants registered as a trademark with the federal government and the Patent and Trademark Office said, no, we are not going to register it. We're not going to register it because there's a provision of the trademark law that says we will not register trademarks that disparage an individual, et cetera, et cetera, et cetera, and this is disparaging, so we're not going to register it as a trademark. There is a litigation raising the same issue involving the Redskins in the fourth circuit and the lawyers for the Redskins have actually been trying to get their case hooked up with this one in the, in the Supreme Court. Um, so they may or may not succeed. Um, the issue is whether this provision of the trademark law, basic issue. There's some, there's an issue about how to construe this disparagement provision, but the main issue is whether this provision violates the First Amendment because the restriction of speech.
Strauss:
Um, I, you know, as far as, I think the Court will probably find the issue at some point, irresistible. Um, if only because they're all Washingtonians now, um, uh, you know, who knows, but that, that would be my guess as far as speculating on the outcome. I think it's one of those cases where the, your instinct is to say, Oh come on, you can't say this, this speech is no good because it disparages people. The whole point of the First Amendment is you get to be disparaging, that's sort of one instinct. Um, and what is disparagement anyway? It's all kind of vague and it means the government's taking sides and all those things which are, you know, very kind of first amend, things the First Amendment pretty clearly doesn't allow. Government's position, on the other hand, is, look, we're not saying you can't call your band The Slants or your team, the Redskins. You can call them that. You can even trademark it because trademarks are not, so we don't grant trademarks. Trademarks are established by state law. What we will do is register a trademark, which gives you some additional procedural protections, but you can go ahead and call yourself anything you want. We're not stopping you from doing that. We just, you know, we have this package of protections that we will give sometimes to trademarks. It's like a subsidy. It's a government benefit. And the same way we can give an NEH grant or an NSF grant to certain people and not other people or a public theaters for certain productions and not other productions, we have this package of benefits for certain trademarks and not others. And we choose not to give it to ones that disparage people. And as for the idea that this is a viewpoint distinction, that you're choosing sides in a fight, you know, Mr. Tam, you've, you've put a falsified that yourself because you've said you're not using this to disparage Asian Americans. You're using it to kind of buck them up. Um, so it's not viewpoint and that's the government's position. Um, you know, I think the first, especially with this court, the kind of First Amendment reflex, uh, is very strong and I think, um, they would, they would probably, if I had to speculate and my speculation would be, they would probably say this provision is not valid. The patent trademark office is history of enforcing. It seems to be very spotty and irregular. Um, don't have any very clear guidelines. So just a lot of things about to make it, uh, make it on, uh, unappealing. But, uh, but obviously a sort of a, a high profile and interesting case. Final case is one that there's not even the, the opposition, the petition hasn't even been filed yet. Um, but my guess is it will when it gets to the court, my guess is it'll be granted. If not in this case, then the future one. It's called Gloucester County against GG and it's the issue about a transgendered student using a bathroom. Um, this, this case, the underlying issue here is actually a very important issue of, of administrative law. That might be one of the big issues of the next decade or so, uh, in the Cordium. You think about it as something else, but actually the sort of front and center issue is, uh, is an important administrative law issue. Here's how the case comes up. Title Nine of the, um, Education Amendments of 70--, 1974, the famous Title Nine forbids discrimination on the basis of sex in educational institutions who get federal funds, discrimination on the basis of sex. That's enforced by regs issued by HHS. HHS issued a reg that said, if you have separate bathrooms, that's not discrimination on the basis of sex.
Strauss:
Um, yeah, by the way, different from race where, separate bathrooms were the core of racial discrimination, but they said separate but equal in bathrooms is for sex discrimination obviously. Okay. Uh, which you know, seems very sensible. Okay. Um, uh, now that's what the regulation says. Uh, now what does it mean to have separate bathrooms on the rate, on the basis of sex, which you are allowed to have? Um, well, HHS said it's our reg, so we'll tell you what we meant. And what we meant is you get to go to the bathroom of the sex you identify with. You're not confined to the bathroom of the sex on your birth certificate. That's what we meant when we said, um, uh, you can have separate bathrooms on the basis of sex. Um, uh, and that's the posture of the case. Now, HHS did that in a relatively informal way. If they didn't go through full notice and comment, um, uh, it said we don't have to, we're just interpreting one of our regulations. There is a doctrine that called Auer after the case in which it was most recently announced that agencies get enormous deference in interpreting their own regulations because after all it's their regs. Auer has been under sustained attack from certain members of the court who want to overrule it and say, no, agencies don't get any special deference in the interpretation of their regs. Courts are supposed to interpret their regs. Um, and that's the, that's the posture of the case. I think these questions about how much deference administrative agencies will get in interpreting statutes, which is underlying this of course because the Title, Title Nine forbids discrimination on the basis of sex. Is this, is this in any way connected to discrimination on the basis of sex, you might ask. How much discretion do agencies get in interpreting statutes and then interpreting their own regs? I think those are going to be, um, very front and center issues really for the, for the next, uh, uh, some period of years now with the Court, with, uh, with the, the new Court. We'll get into that I think in some of the more general questions. But here that question is being raised in a particularly compelling and dramatic context. So thank you very much.
Audience:
[applause]
Konsky:
All right. Thank you Tony. Nick, David for the great, um, information and insights. We're going to start off questions from the audience now and in case folks are feeling shy I'll, I'll kick it off. Um, first with a question. Um, obviously the big story on the Court, um, recently has been the unexpected turn of events with justice Scalia's passing. Um, we have the nomination without confirmation of Justice Garland and an eight-eight, I'm sorry, four-four court with only eight members, um, deciding cases and deciding what cases to take. So perhaps to start with David and Tony and Nick, if you have thoughts as well. Um, where do you see things going with the court this year? What are your predictions for the term?
Strauss:
Um, well I think in these situations where you could have a either a, a significant change in the orientation of the court if the Democrat wins and appoints Judge Garland or appoint someone who would, a Democratic president wouldn't actually appoint, a very significant change or a kind of reinvigoration if we have a Republican appointee. I think that there's a real danger here in fighting the last war and thinking that the issues of the next generation are going to be the same issues that we've been preoccupied with. I had a conversation with Rich Wolf for USA Today about this and Rich mentioned, you know, this is probably the most significant election for the Supreme Court since 1968 and I think that's probably right. In 1968 Nixon ran against the Warren court and then very early in his time on the court he got to make four appointments and there is no question if those won the election narrowly. No question, those four points been made by Hubert Humphrey, who was his opponent that election, constitutional law would look very different and we could be in the same situation now, but if you think back to '68, the big issue that everybody was concerned with that the Nixon was campaigning on was law and order or rights of criminal defendants. And while that was a significant issue in the next decade, no one in '68 saw abortion coming that I know of. No one thought this is a big issue, big election because it's going to determine whether there's a right to abortion. Affirmative action was really not on the radar screen at '68 gun rights, nowhere near the radar screen. In fact, one of Nixon's appointees, Warren Berger was famous for saying the claim that the Second Amendment creates an individual, right, that the handgun is a fraud. Um, so these issues that are so salient for us or nowhere in the picture, then I think there's a real danger of thinking, you know, what is this going to do about affirmative action, abortion, second amendment.
Strauss:
Some of those issues sure will persist, but, but I think there's a trap there. So what will persist? I think, I think a couple of things. First, these questions about executive power and the power of administrative agencies. I think there's going to be big questions. Um, especially if we have a situation in which the presidency is in the hands of the Democrats and Congress or at least the House in the hands, the Republicans. So there is no way for president to get anything done except by executive or administrative action that, that and if there's a democratic majority, quote unquote on the Court, a majority of people appointed by Democratic appointees, um, the big question will be, are we going to see an expansion of doctrines that give deference to the executive and to administrative agencies. I think that could be especially true. Maybe even no matter who wins the election, the area of national security, I think the tradeoffs between national security and civil liberties are just, we're just stuck with those for the indefinite future. Um, a lot of those are North level executive power and so we'll see them. So that's the second thing that, that's a, an area where I think that that's, you know, that's something that keep your eye on. The other thing I think is going to emerge as an issue for this court that is not that salient yet, um, is what you might call blue collar criminal defendant's rights. Uh, this court has been quite strikingly sympathetic to what you might think of as white collar criminal defendants. Um, the federal government has a terrible record before the Court and substantive criminal prosecutions, criminal prosecutions brought by the federal government. They've gotten their ears boxed time and again by the court. I remember a couple of years ago, there are a lot of stories about how there was a surprising lack of the Senate, surprising unanimity on the Court. And I think that was true, but a lot of that was driven by the fact that both sides of the Court are, um, impatient with or hostile to average. You want to characterize it a lot of federal law enforcement. Um, now, uh, the, the, the, the, uh, criticism that has been made is, you know, you guys and Supreme Court, sure you're sympathetic when someone like the former governor of Virginia is accused of doing something you could kind of imagine yourself, you would might've done if you are in that position. But what about some, uh, member of minority group who gets pulled over for a, uh, a trivial traffic offense because the cops just think he's in the wrong neighborhood and what do you know, they find he's got some marijuana or what do you know, they find he as an outstanding warrant and now he's going to go off to jail for an extended period of time. You seem less sympathetic to him. That's the criticism and I think they'll respond to that criticism in a post-Ferguson so-called environment. Um, and I think you'll see a lot more attention to issues raised by street level criminal law enforcement and that that could be bipartisan, that could cross ideological lines as the attention to the other kind of law enforcement has. So I would expect to see sort of very interesting movement in those areas. If not this term, then, then when there's a ninth justice and it may be an unpredictable.
Konsky:
Any other thoughts for our panelists? Okay. So we have microphones in the back and in the to the side if you want to raise your hands, we can send a microphone over your way and it's your opportunity to do reverse Socratic method on former professors. Sure. And then in the middle of there, a microphone is heading your way.
Audience:
Since we have a corporate expert here, I'm wondering what you think about what I view as a very uh, uh, obnoxious attack and the SEC ALJs by the corporate bar, uh, that they're biased and it's unconstitutional from there to hear cases when in fact ALJs is make much of government enforcement work. And in my experience is that government will hire ALJs are as balanced and neutral as federal judges are. And we have, uh, somebody here who, uh, here's appeals from ALJs. Can I mention that, Jr? I don't know what her view is, but anyhow, I was wondering, especially these vicious attacks in the Wall Street Journal, it's sort of all offset. Is that appropriate? And isn't it a defeat when efficient administration of justice really is to the advantage of these corporate attorneys?
Casey:
So, uh, there's two questions. There's the kind of viciousness of the attack and then there's the, okay, is this a legitimate constitutional question we should be dealing with? And I like, some of the things I've read are particularly vicious. I don't think the bias is as big. Like the idea that ALJs are, are the SEC choosing people. It's one sided. It's rigged in that sense. I don't think that that holds a lot of water. The question about their authority is an interesting one. And then there are questions about kind of biases we don't realize and protections you have that judges might bring to the table. And so when I always think about the, I was in a panel last year on it and I was taught, there was messy people there and they were like, Oh, this is just easy. We've never had a problem. There's no question that they can decide. These cases. A couple of us in the audience who beg for bankruptcy or like you know, there's a whole line of Supreme Court cases that say bankruptcy judges can't decide cases.
Casey:
Why are ALJs any different? One of the SEC people said, Oh, because there's this line and I think about common law or statutory law, and so you were doing statutory law so that we don't need to have a judge deciding. I said, wait a second, all of the fraud stuff in bankruptcy, there's a statute. It just happens to be based on a history of common law. But mostly what the SEC is doing is this statute about fraud, which happens to be based on the history of common law. The court, and this is true of administrative agencies, the SEC, the Court has been very inconsistent about where any non judge can decide something. And when you have to have a judge decided, so putting aside whether or not ALJs are good or bad, it does some odd that a bankruptcy judge can't enter final judgment. Whereas an ALJ maybe can. And they're both deciding fraud cases, right? So they both decide fraud files or transfers for securities fraud. Uh, so I do think there's a little bit of, there is some value to the attack there. Now you'd say, well wait a second. Our whole administrative system works in is efficient because we have, we allow this to happen. You know, the bankruptcy side, we always, we have a, you don't, you don't seem to worry about it. When Stern v. Marshall almost exploded the whole bankruptcy system, um, in the defense of the Stern v. Marshall line. So not allowing bankruptcy judges sent your final judgment is it's just we have a simple, we don't trust the separation of powers between branches and we don't trust the executive branch to just act on its own. And so we need to have the three branches have their right places. Right. And so this is why bankruptcy judges, which are, are they what branch they're part of is weird, right?
Casey:
We don't know. So they can't, if they can't enter a final judgment, why aren't we worried about that with the ALJs? Right. Why aren't we worried about an adjudication that looks like a common law adjudication happening not with an article three person. Now in the case of the parties focused more on the article two stuff and, and, and the appointments. And I don't think there's as much there, but to me the three issues are really interesting, not because overhaul, but people that are biased. But because we have a system that's supposed to kind of just have hard rules that protect against kind of flow between the branches and it seems like there's a little bit there. So I think it's a more complicated issue than purely all. They're just, it's just big bad business railing against the SEC.
Konsky:
Great, question. In the corner
Audience:
On a racial gerryman, gerrymandering cases, you said you favored a subjective rather than an objective test. Would you tell us a little bit about what the Court has said about how you go about interpreting or discerning the subjective intent of a group like a state legislature?
Stephanopoulos:
And I wasn't saying that, um, that I personally favor the subjective over the objective approach. Justin, it's more consistent with what the court has said in the past, uh, about what the relevant, uh, inquiry is in these cases. Uh, in my view, this, this entire cause of action is a very bizarre cause of action. You know, it's, it's the, it's the only equal protection cause of action where you don't need proof of any kind of harm to state a claim. Uh, you know, you trigger strict scrutiny. You can strike down districts, uh, solely because race played too large of a role in, uh, in drawing the district. Uh, even if you can't point to any representational harms for any group that follow based on that district, uh, that district's creation. So it's a, it's a, it's, it's an odd anomaly in the overall, uh, sweep of equal protection law anyway. Um, you know, so what is the court said about how you do it subjectively? Uh, you look to, ideally you have sort of smoking guns, statements of intent. You know, you have memos, you have, uh, uh, quotes, you have speeches from important members of the legislature where they made clear their, uh, their racial motive. Um, usually you don't have that. So usually you have to resort to circumstantial evidence and there are all kinds of circumstantial evidence. You look to, uh, the most famous of the kinds of circumstantial evidence is the shape of the district. So, you know, if you have the serpentine bizarre looking district, maybe you can infer that race must have been the predominant motive for that district because you never would have drawn that district in that particular configuration. Uh, but for the racial purpose, uh, you can also look to disregard, uh, four other traditional districts and criteria.
Stephanopoulos:
Maybe the district breaks up lots of counties, maybe it disrespects underlying geographic communities of voters. Uh, those are the main ones, of course, have looked at, you know, some combination of, uh, of smoking gun evidence plus circumstantial evidence based on the district's particular form. Um, it's all kind of unsatisfying because, uh, inevitably, you know, two legislators were the driving force behind the entire map, and yet, uh, we might hold smoking gun evidence be relevant even if it came from other legislators who are drafting the map. Uh, what it means to have collective intent for legislature itself is, you know, a debatable, difficult proposition. Um, but you know, there we've had 15 or so of these racial gerrymandering cases, so there's been a fair amount of consensus it's developed, uh, within this body of law. What are the categories that I've been to look at? And they're the ones that I mentioned.
Konsky:
Question in the middle table toward the back.
Audience:
Can one of you address the voting rights or voting restrictions cases, uh, how you think they will play out in particular? Is this one that will be decided by who that ninth justice is?
Stephanopoulos:
Uh, sure. So yet, none of those cases have yet beached the court on the merits. Uh, but those cases are exploding in frequency throughout the country. So you have, uh, cases involving the constitutionality and the validity under the voting rights act of, uh, photo ID requirements for voting, uh, of cutbacks to early voting, uh, of efforts to get rid of party line voting in a, in a couple of States, uh, of, um, uh, uh, proof of citizenship requirements to register to vote. You know, there's a, there's a whole constellation of voting restrictions that have been passed in different States over the last decade or so, and that are now being attacked on, uh, any number of different theories in both state and federal courts. Um, my sense is these are deeply ideological cases that are seen by judges and by justices, uh, through ideological and partisan prisms. So, uh, I'm quite confident that the current court would split four-four on most of these cases.
Stephanopoulos:
Uh, that's been the pattern so far when cases have reached the court on sort of unusual emergency stay and other kinds of grounds. Um, you know, we'll, uh, so I think this is an area where the identity of the knife justice could make a very big difference. Uh, I think that if, you know, if there's a democratic appointee, uh, a lot of these restrictions are going to be stopped by the courts and if there is a Republican appointed ninth justice, then a lot of these restrictions will be upheld. Um, the one relevant case is Crawford from seven or eight years ago where the court upheld, uh, Indiana's photo ID. Uh, requirement, um, on a six, three, not a five, four and a six, three vote against a facial constitutional challenge. Um, but that was an early case where plaintiffs hadn't developed their evidence to the same degree they have now. It was also a case featuring only a facial constitutional attack, not as applied constitutional attack and not any claims under the voting rights act. Uh, so in some ways it's sort of a primitive case compared to the current litigation, but um, by this current litigation is clearly a category that hangs in the balance depending on, uh, what the Court's composition ends up.
Konsky:
There's the question center table, middle.
Audience:
Yeah. Uh, David, you mentioned that they were postponing the oral argument in Trinity Lutheran may be awaiting a new justice. What, if any, evidence, do any of you see that the lack of the ninth justice has led to denials of cert or you know, delay in taking cases?
Strauss:
You know, I don't, I don't, I'm sure there are cases that they have denied where I thought they probably would have granted that there was full strength. The one thing we can say with some competencies, it led to narrow rulings and a lot of cases in some cases last term. Um, the one case that comes right to mind is even while the case about one person, one vote, it looked as if it might be momentous and they ended up saying something that was obviously correct that the system of a portion of it States have been using for 40 years. Nearly every state has been using for 40 years was constitutional. That's what they said. Uh, um, so I think that has gone on. I can't offhand think of of denials, but I think it's just natural to suppose they will, um, put off some issues. I think the issue in Friedrich's the case about a public employee way readings, I think they would just not go near that again, at least until their full strength. Maybe not, maybe not, maybe not ever. So I would look, I would expect them to, um, uh, to be cautious. There's just no reason for them to invest time and energy and, and, and, you know, intention among themselves in a case that's gonna divide four for Medicaid. I have every reason to avoid that. And it makes sense.
Audience:
These cases popping up now about redistricting, suggesting that the court should ultimately, they're all relatively early point at this juncture. They're all suggesting, well, it's time for the court to address the question of partisanship and redistricting. And the problem with that is there might even be a fifth vote for that in justice Kennedy if he'd ever been able to figure out a way to do it. And nobody's ever been able to figure out a way that really looks fair. So we do live in a political world. So that's what the constitution says, and we do it that way. But is there, have you seen any alternatives that you think might actually fly?
Stephanopoulos:
Uh, yes. I, I wrote an article on this topic a couple of years ago and I've, I've been, uh, a centrally involved, so I'm usually for, for academics, you know, where we write articles and they land on sort of dusty bookcases. Uh, this article has become the, uh, the, the sort of impetus for a lawsuit in Wisconsin, uh, where we survived Wisconsin's motion to dismiss and motion for summary judgment. And we had a trial on partisan gerrymandering, uh, at the end of may. So this was the first case. The first part is in gerrymandering case that made it to trial, uh, in a third in 30 years. You know, ever since the Court recognized the cause of action for partisan gerrymandering, uh, back in 1986. So I'm crossing my fingers here that, uh, the, the trial court will see things. Yes, the standard is so, um, so we have a, a quantitative measure that captures the extent of the partisan asymmetry of different plans.
Stephanopoulos:
Uh, the basic intuition is that when you gerrymander districts, your goal is to waste the opposing parties, uh, votes. And you can waste their votes in one of two ways. You can pack their voters in districts where they have overwhelming majorities and so they're all votes above the 50% plus one threshold. You need to win or wasted, uh, or you can crack it. The other side supporters among lots of districts where all the votes are cast for losing candidates and therefore all of the votes are wasted. So this measure that we propose, uh, adds up both sides, total wasted votes across all of the districts in a state. Uh, it subtracts one total from the other and divides by all of the votes cast in a state. Uh, and so capture is in a single number, the, uh, the direction and the magnitude of, uh, of the partisan asymmetry there.
Stephanopoulos:
Um, so we've calculated this metric for every state from, uh, every state plan from 1972 to the present. And so we can say things that like Wisconsin's current state house map is the, uh, fifth worst of all time, or at least of modern times. Um, so, so this Wisconsin lawsuit is based on this kind of quantitative partisan symmetry approach. Uh, there's a couple other, uh, federal cases involving partisan gerrymandering that are also currently winding their way through the courts. Uh, they both, uh, sort of disdain any quantitative approach and focus instead on a partisan intent. Um, their basic theory for both of them. There's one in North Carolina and one in Maryland. Their basic theory is that, uh, when the legislature intentionally benefits one party and harms another and there's any, in addition of a harm that's enough to strike down the whole map. So it's a more radical theory than the one we're proposing because it would essentially be satisfied every time that a single party is in control of redistricting.
Stephanopoulos:
Um, whereas our approach, because you have a quantitative measure, you can calibrate it and you can state that, you know, only plans in the works, 10% only plans in the worst 1% or whatever you want about the historical distribution are, uh, are unconstitutional. Um, I'd be happy with either approach. Uh, I think it comes down to, um, whether the Court wants to radically upheave the entire area and basically declare almost all current district plans unconstitutional, uh, or whether the court wants, um, a more tailored intervention that strikes down outliers but doesn't result in the great bulk of district plans being struck down. Um, so you know, this is, this is nothing's made to the Supreme Court yet, but in the next couple of years, if one of these cases gets there, it could represent a really, really significant, uh, case.
Audience:
Can you remind us where we read [inaudible]
Stephanopoulos:
uh, in, uh, in the U Chicago Law Review. So, you know, I published my best work only in our home journal. Uh, it's in the 2015, uh, article. I can, I can send the citation,
Konsky:
Have more questions toward the back.
Audience:
[inaudible] the answer to this is probably simple. No, but the hope that it's not, you see, as we see more and more challenges in the Court, more and more involved in administrative law issues came more mild in the administrative state. And Congress also get less, less powerful due to its inability to act, the executive branch act more powerfully, both under public administration and our democratic administration Supreme Court do anything to really try to change the balance and say we are gonna get more involved or continue to be a case by case minor umpiring deal issues. Or do you see a much more major act at some point as Congress really has acted lessons less so in recent years?
Strauss:
Um, yeah, they could. And, and are, and I think at least, uh, toward the, before the, before justice Scalia's death, we're contemplating some very significant changes, um, in, at least in administrative agencies power, the issues about executive power itself. Um, you know, come up less frequently, but they were, uh, this doctrine I mentioned about, uh, in, in connection with Gloucester County, that case about the transgendered student, a doctrine called [inaudible], which says administrative get a lot of get to interpret the regulations as they want now was clearly in the cross hairs for several of them. And I think Chevron, the doctrine that says agencies got a lot of deference in interpretation of the statutes, they charge the ministry. I think that was, um, uh, under serious threat as well. And that would be a big difference if, uh, if courts, I mean, it's never really clear what exactly Chevron held, but it definitely suggested courts shouldn't be deferential to administrative agency interpretations.
Strauss:
And they started unwinding that and say, no, no, no. We should deferential to age interpretation of statutes started unwinding and saying, Oh no, we get to interpret the statutes. That would be a big, um, a big change. So I, I think they were contemplating some major things. The other question, and it's a, I think it's a difficult question for them. If they, if they come to be convinced that we're in an era of this kind of partisan, uh, gridlock where Congress is simply not going to pass a lot of legislation if the president supports just because the president supports it and they don't want to handle when for the president, they think we're in that kind of era where bipartisan cooperation's recently different. Should they do something about that? And if they think we should do something about that, the thing they could do is move in the opposite direction for what I just said and allow increasing deference to executive agencies.
Strauss:
But this is a big fault line for the courts. I think it was, I think it surprised a lot of people that there began to be these really strong statements of hostility to the administrative state coming from a lot of justices mean really, um, uh, you know, we're, we're ruled by bureaucrats that kind of talk, uh, when these had been doctrines that have a lot of support, especially, you know, across the, across the partisan line. In fact a lot of support, especially from conservatives. Um, so I, I would, I would think this is, uh, this is one of the primary things that the next appointment we will determine.
Casey:
I would add, you know, the, the insider trading case I was talking about sounds and I, I think has a flavor of this. So before justice Scalia had specifically said, looking for an insider trading case to challenge the idea that the SEC gets any deference in a criminal case. Right. So this, this idea that we're getting administrative deference, you said in the criminal case, that's really crazy and was, hadn't even said, like the courts looking for a case. Now this might've been that case. I think it looks different now within not there. Uh, but you probably would have seen maybe a harder attack on the sec is criminal stuff. And there's another case before the court Shaw about the government's definitions of a bank fraud which has the same flavor. How much difference do we give? And one attack is just on the general minister to state and another more narrow one is especially in criminal cases. We want to make sure we limit their deference as well. [inaudible]
Konsky:
and it looks like we're running short on time so if you didn't get to your question answered, our panelists will be here to chat after the presentation. And with that I'll pass it back over to Dean miles for some quick closing remarks. Thank you. Thanks for us for Konsky. I just want to thank you for moderating our discussion and I want to thank our panelists for us for Strauss presser Stephanopoulos preser Casey for a illuminating, uh, presentation today. Uh, I will be sure to be very careful about giving any insight information to my brother. Uh, but thank you all very much for coming.
Audience:
[applause].
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